In the Matter of the Estate of Rosen
86 Mass. App. Ct. 793
| Mass. App. Ct. | 2014Background
- Decedent Fred S. Rosen, a lifelong bachelor and physician, executed a revised will and changed his TIAA‑CREF beneficiary on May 12, 2005; he died May 21, 2005. The will named Orietta Geha and Rachelle Rosenbaum coexecutrices.
- William P. Girard, a longtime close friend and prior beneficiary, objected, alleging lack of testamentary capacity and undue influence; he also challenged the TIAA‑CREF beneficiary change in a consolidated equity action.
- At the time of execution Rosen was terminally ill and had intermittent confusion/delirium in medical records, but witnesses (attorney and two staff witnesses) observed him alert, coherent, and purposeful when signing and providing social security numbers for the beneficiary form.
- The Probate judge made extensive factual findings (over 400) after trial and concluded Rosen had testamentary capacity on May 12, 2005, and that the tangible personal property provision (article II) created a power of appointment rather than an invalid trust.
- The Probate judge awarded attorneys’ fees to the coexecutrices (after reductions); Girard argued the award was excessive and procedurally premature.
- The Appeals Court affirmed: allowed the will, sustained the beneficiary designation, upheld the construction of article II as a power of appointment, and affirmed the attorney‑fee award.
Issues
| Issue | Plaintiff's Argument (Girard) | Defendant's Argument (Proponents/Geha & Rosenbaum) | Held |
|---|---|---|---|
| Testamentary capacity to execute will and change beneficiary | Rosen lacked capacity due to intermittent confusion, delirium, medication effects, and expert testimony | Rosen was coherent and understood assets and beneficiaries at execution; testimony of attorney and witnesses supported capacity | Affirmed: sufficient evidence supported judge’s finding of capacity |
| Validity of TIAA‑CREF beneficiary change | Change invalid if executed without capacity | Change executed when Rosen had capacity and reflected intent | Affirmed: beneficiary designation valid |
| Article II (tangible personal property) — trust vs. power of appointment | Language "one or more of my friends" too indefinite to create a trust; thus provision fails | Provision should be construed as a power of appointment giving executrices discretion consistent with testator’s intent | Affirmed: provision is a valid power of appointment, not an invalid trust |
| Attorneys’ fees award to coexecutrices | Award excessive and entered before Girard could respond | Probate judge carefully reviewed billing, reduced amounts, and reasonably exercised discretion | Affirmed: fee award justified and within Probate Court discretion |
Key Cases Cited
- O'Rourke v. Hunter, 446 Mass. 814 (2006) (standard and burden for testamentary capacity)
- Maimonides Sch. v. Coles, 71 Mass. App. Ct. 240 (2008) (presumption of capacity and effect of opposing evidence)
- Paine v. Sullivan, 79 Mass. App. Ct. 811 (2011) (capacity requires freedom from delusion and comprehension of making a will)
- Minot v. Attorney Gen., 189 Mass. 176 (1905) (indefinite class defeats a trust)
- Thompson v. Pew, 214 Mass. 520 (1913) (definition and nature of a power of appointment)
- Frye v. Loring, 330 Mass. 389 (1953) (execution of power of appointment turns on intent)
- Hochberg v. Proctor, 441 Mass. 403 (2004) (will construction seeks testator's intent from whole instrument)
- Hershman‑Tcherepnin v. Tcherepnin, 452 Mass. 77 (2008) (harmonizing will provisions to effect testator's intent)
- Matter of the Estate of King, 455 Mass. 796 (2010) (factors and discretion for probate attorney fee awards)
- Fabre v. Walton, 441 Mass. 9 (2004) (procedural rules for requesting appellate attorney’s fees)